| Armed conflict is often accompanied with the destruction and looting of cultural property.Since the beginning of recorded history,war has been considered as a "winnerwin" struggle,in which the property of the defeated is disposed of as a trophy.With the growing acceptance of the concept of distinguishing between civilian and military property in time of war,buildings used for religious,artistic,scientific and charitable purposes have been given special protection in armed conflict.This principle of wartime protection of specific cultural property has gradually developed over the past two hundred years,and has been recognized by the international community and formed obligations under international law.Besides,tons of valuable cultural property were destroyed and looted during the two world wars.The international society realized those fragile cultural property need a protection in higher level in the armed conflict.Today,with the ongoing efforts of the whole society,three legal systems to protect cultural property in armed conflict have been built.Namely,a specific legal system focusing on the protection of cultural property in armed conflict represented by the Hague Convention of 1954,a system of international humanitarian law,represented by the Geneva Convention of 1949,and the system of international criminal law,represented by the Statute of the International Criminal Court.These three systems protect cultural property in armed conflict from multiple perspectives,however,the heartbreaking news about the destruction of cultural property shows the failure of the above systems.First,the definition of military necessity provided in 1954 Hague Convention is too vague,making military necessity a legitimate pretext for attacking cultural property.According to 1954 Hague Convention,there are two kinds of cultural property,one is the general cultural property,the other is the property of great importance.The two kinds of cultural property are protected in different level,and the military necessity is the exception of the above protection obligation.For example,if hostile action against a cultural property is indeed military.However,the 1954 Hague Convention did not give a precise definition of military necessity,nor did it set up corresponding procedural rules for determining military necessity,which cause the legal uncertainty of the principle of military necessity.For this reason,I will argue that replacing the term“military necessity” with “military objective” could be an ideal approach to address such uncertainty and advocated the procedure guide of military necessity in the 1954 Hague Convention.Secondly,the Statue of the International Criminal Court has a “civil-use” trend rather than “cultural-value”.The drafter of the Statue regard the cultural property as property of civilians.Besides,the attacks on certain cultural property would result in widespread civilian casualties.In this regard,the Statue recognize the deliberately destruction of cultural property as an international crime.Meanwhile,the limited jurisdiction of the International Criminal Court is also a flaw.Thus,although the Statute of the International Criminal Court includes intentional vandalism of cultural property as one of the manifestations of war crimes,it is broken in the actual trial alone.Thus,while the Statute of the International Criminal Court includes intentional vandalism of cultural property as one of the manifestations of war crimes,it is difficult to convict the act of vandalism of cultural property alone in the actual trial.In this regard,the author believes that the crime of destroying cultural property should be applied as an independent charge.At the same time,in the field of domestic law,it promotes the integration of the rules of international law into the scope of domestic law to regulate the cases where the International Criminal Court is beyond its jurisdiction.Finally,the system of international humanitarian law,represented by the 1949 Geneva Convention,has made important contributions to the protection of cultural property in non-international armed conflicts.However,since non-State armed organizations are not subjects of international law,there are practical and legal obstacles to the fulfilment of some of their obligations under international law.For example,due to the asymmetry of information,the situation and information of cultural property can not be fully grasped,resulting in inadequate protection.Another example,the implementation of the Convention against non-State armed organizations may hinder the internal affairs of a State.In view of the special status of non-state armed organizations,the parties to armed conflict should be encouraged to conclude special agreements and use special agreements as a bridge for the application of international law to non-state armed organizations.At the same time,relying on the aid mechanism of international organizations to solve the practical problems of international law. |
